State Of Louisiana VS Mark A. Burge (2012KA0761 Rehearing Application)
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0761 STATE OF LOUISIANA VERSUS MARK A BURGE 1 DATEOFJUDGMENT fpEC 2 1 2 12 ON APPEAL FROM TI TWENTY JUDICIAL DISTRICT COURT SECOND NUMBER 53767 DIVISION B PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE AUGUST J HAND JUDGE Walter P Reed D A Counsel for Appellant Bruce State of Louisiana D A Dearing Covington Louisiana Kathryn W Landry Special Appeal Counsel Baton Rouge Louisiana Carol A Kolinchak New Counsel for Defendant Appellee Mark A Burge Orleans Louisiana Sophia Bernhardt Montgomery Alabama BEFORE KiJHN PETTIGREW AND McDONALD JJ Disposition YEAR FIVE SENTENCE VACATED REMANDED WITH INSTRUCTIONS KiJHN J Appellant the State of Louisiana appeals the trial court denial of its s motion to reconsider the five sentence imposed on the defendant year appellee Mark A Burge pursuant to the defendant motion to correct illegal sentence For s the following reasons we vacate the five sentence and remand for year resentencing FACTUAL AND PROCEDURAL BACKGROUND On July 28 1976 when the defendant was seventeen years old he kidnapped and raped a woman He was charged with and convicted of aggravated kidnapping and aggravated rape violations of La R 14 and La R 14 S 44 S 42 respectively For each conviction the defendant was sentenced to life imprisonment without benefit of parole probation or suspension of sentence The sentences were ordered to run The defendant sentence for s consecutively aggravated rape was subsequently vacated on appeal and the matter was remanded for resentencing See State u Burge 362 So 1371 1378 La 1978 He was 2d resentenced on remand to fifty imprisonment without benefit of parole years probation or suspension of sentence for the lesser included offense of attempted aggravated rape to be served consecutively to the life sentence Through multiple appeals and writs the defendant challenged pro se his aggravated kidnapping sentence arguing that his life sentence without parole eligibility was illegal See Burge v Butler 867 F 247 Sth Cir 1989 2d In April 2011 the defendant filed a counseled motion to correct illegal sentence wherein he argued that under Graham u Florida S U 130 S Ct 2011 176 L 825 2010 his life sentence without benefit of parole far his 2d Ed 2 aggravated kidnapping conviction was illegal At a hearing on August 16 2011 the trial court heard argument on the issue and took the matter under advisement At a sentencing hearing on September 12 2011 the trial court pursuant to Graham vacated the defendanYs life sentence for aggravated kidnapping and resentenced him to five imprisonment at hard labor for the responsive years offense of simple kidnapping with the five sentence to run consecutively to year the previously imposed fifty sentence The State objected to the sentence and year filed a motion to reconsider sentence which the trial court denied The State now appeals ASSIGNMENT OF ERROR In its sole assignment of error the State argues the trial court erred in granting the motion to correct illegal sentence Specifically the State contends it was improper for the trial court to vacate the defendant life sentence without s parole for his aggravated kidnapping conviction and to resentence him to years five imprisonment for simple kidnapping In Graham 130 S at 2034 the Supreme Court held that the United Ct States Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide La R 15 provides S 574 B 4 in pertinent part that no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years La R 15 provides in pertinent part S 574 2 A 4 A person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon seroing at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty five In State v 5haffer 11 La 11 77 So3d 939 942 per 1756 23 curiam our supreme court found that Graham required the relatars and all other persons similarly situated to have a meaningful opportunity to secure release as a regular part of the rehabilitative process Accordingly the Shaffer Court 77 3d So at 942 held he T Eighth Amendment precludes the state from interposing the s Governor ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non crimes committed when homicide they were under the age of 18 years would otherwise have access once they reach the age of 45 years and have served 20 years of their sentences in actual custody The state thus may not enforce the commutation provisos in La R 15 and 15 S 574 2 A 4 B 4 574 against relators and all other similarly situated persons and the former provisions offer objective criteria set by the legislature that may bring Louisiana into compliance with the Graham decision Footnotes omitted The defendant argues in brief that Shaffer did not create an exclusive remedy under Graham and further that our supreme court therein did not overrule longstanding precedent that permits sentences such as the five year sentence he received We do not agree The Shaffer Court along with its two companion cases specifically tailored its decision to comply with Graham See State v Dyer 11 La 11 77 So3d 928 per curiam Stale v 1758 23 Leason 11 La 11 77 So3d 933 per curiam Further the Shaffer 1757 23 Court addressed the older jurisprudence on this issue and expressly declined to follow it 7ust as the defendant argues in the instant matter the Shaffer Court noted that relators argued that the appropriate remedy is to resentence them according to the penalties provided for the next esser and included responsive 4 verdict of attempted aggravated rape Shaffer 77 So3d at 94L In rejecting the suggestion that the proper remedy is resentencing under a lesser and included offense the Shafjer Court 77 So3d at 941 stated 42 We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution In Graham the Supreme Court held that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole S Graham 560 U at 130 S at 2030 The Court specifically Ct observed A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime What the State must do however is give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation Id The Court noted that a life sentence without parole deprives the convict ofthe most basic liberties without giving hope of restoration except perhaps by executive clemency remote possibility of the which does not mitigate the harshness of the sentence Id 560 U S at 130 S at 2027 citing Solem v Helm 463 U 277 300 Ct S 301 103 S 3001 3015 77 L 637 1983 sh down a Ct 2d Ed life sentence without parole for a habitual offender convicted of issuing a accounY check Court notes the difference between the no availability of parole as apart of the rehabilitative process regular and commutation of sentence as an ad hoc exercise of executive clemency Thus under Shaffer and Graham the appropriate remedy for a minor sentenced to life imprisonment without parole for a non crime is to let homicide the life sentence stand but to delete the restriction on parole eligibility We note as well that our supreme court directed the Department of Corrections to revise s Shaffer prison master according to the criteria in La R 15 to S 574 2 A 4 reflect an eligibiliry date for consideration by the Board of Parole Thus in accordance with Shaffer the Department of Corrections is directed to revise the sprison master according to the criteria in La R 15 to defendant S 574 2 A 4 5 reflect an eligibility date for consideration by the Board of Parole See Shaffer 77 So3d at 942 43 Accordingly the five sentence imposed by the trial court upon year defendant is vacated The case is remanded to the trial court for resentencing in accardance with this decision and with instructions for addressing the defendant s prison master regarding his sentence for aggravated kidnapping YEAR FIVE SENTENCE VACATED REMANDED FOR RESENTENCING WITH INSTRUCTIONS In 2012 the Legislature enacted La R 15 by 2012 La Acts No 466 which sets S 574 D 4 forth parole criteria for juvenile non offenders who have been sentenced to life homicide imprisonment 6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
